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Assistant Professor in International Law and International Criminal Law at Leiden University. Specialist in most general topics that allow for reinventing the world around a good bottle of wine (preferably Bordeaux...).
contact: dovjacobs@gmail.com

Thursday, February 25, 2010

Given my recent travels, I didn't have time to comment on the decision by the ICC Pre-Trial Chamber I not to confirm the charges against Abu Garda.

It's a fairly momentous decision from a symbolic point of view. It crowns a series of debatable decisions on the part of the prosecutor in the most emphatic way. This prosecutor really seems to make everybody unhappy. In relation to my previous post on the ISA conference, it was funny to see that despite all the inter-disciplinary disagreements on matters relating to the International Criminal Court, everybody seems to agree to criticize Ocampo... Beyond that, I think it is in fact a good thing for the legitimacy of the Court that it accepts to not go to trial. I don't recall this happening before in international justice. Arguably, the ICC did so on a fairly low profile case, where no media-friendly crime is involved, but still...

From a legal point of view, the decision is not that surprising when you read through it. The OTP really seems to have butchered the case. Apparently, the Prosecution cannot persuasively show that Abu Garda participated in any of the meetings where the attack was planned, nor can it establish that he actually physically took part in the attack. Apparently, the OTP documents claim that he was there and not there... So given this lack of evidence, at least that's how the PTC presents it, it only seems normal that the confirmation of charges was denied.

This being said, I had a couple of extra comments. The first one relates to the nature of the confirmation of charges decision. The Chamber reminds us "that the confirmation hearing is neither a trial before the trial nor a mini-trial". But it is difficult to see how it is not. PTC I seems to engage in the sort of activity that is typical of a trial phase. More particularly, it systematically does an assessment of the credibility of witnesses in comparison with other witnesses. It also engages into a very precise legal analysis of the definition of the crime and its application to the specific AMIS mission, which turns out to be useless at the end given that they can't link Abu Garda to the events anyway (Judge Tarfusser gave a separate opinion on this point). As I've already said elsewhere, the multiplication of procedural steps at the ICC and the correlative multiplication of burdens of proofs makes the whole process a little confusing in my opinion, and the only benefit initially proposed for this, namely speeding things up, has noticeably failed until now. So I remain skeptical about the ICC pre-trial mechanisms.

The second point relates to gravity, something I've already mentioned on this blog before. Up to now, the case-law seemed to have developed in the direction of the judges choosing to ignore the issue of the article 17 "sufficient gravity" criteria. In this case, PTC I did decide to consider it. It acknowledges that

"the gravity threshold contemplated therein is in addition to the Statute drafters' careful selection of the crimes included in articles 6 to 8 of the Statute. Hence, the fact that a case addresses one of the most serious crimes for the international community as a whole is not sufficient for it to be admissible before the Court".

That is a first good first step if the gravity threshold is going to make any sense at all. But afterwards the reasoning loses of its credibility. The Chamber considers the elements to be taken into account, and refers to the criteria to be looked at at sentencing as a guideline. That doesn't really make sense because it suggests that the crimes that would be considered of sufficient gravity at the admissibility phase are the ones that would carry heavier sentences due to aggravating circumstances later on. But if only those cases are selected at the outset, the sentencing criteria become redundant when sentencing comes along.
On their factual analysis, the judges are even more unconvincing.

"The Chamber thus finds that the consequences of the attack were grave for the direct victims of the attack, that is, the AMIS personnel, and for their families. In addition; the alleged initial suspension and ultimate reduction of'AMIS activities in the area as a result of the attack had a grave impact on the local population"

"The consequences were grave for the direct victims"! How's that for an analysis? Of course the consequences were "grave", the victims died! But the Chamber can't really be saying that this is the threshold of gravity to be met, it would just strip it of its content once again. The consequences are always grave for the direct victims of crimes, whether it is genocide, rape or carjacking... as for the second criteria, I'm not convinced about the causality link. The ultimate reduction of AMIS activities in the region is a shameful strategic decision in response to the attack. But what did they expect? It is a war zone and risk is part of the job description. The reason there is a need for peacekeepers in the first place is because it is a risk zone...
I think this decision was the perfect opportunity for the judges to take a stand on the gravity threshold and make a policy statement that the OTP is apparently incapable of making that this kind of war crime, committed in isolation, is not a priority for an international court with a global dimension and limited means. And the opportunity was missed.

I just got back from the ISA annual conference in New Orleans, this behemoth of a conference with 4000 participants and nearly 1000 panels in 4 days. It was interesting enough, even if i'm a a little skeptical on the usefulness of such a huge conference.
I've also been confirmed in some doubts I've been having recently in my work on transitional justice on the benefits of pluridisciplinarity. Of course, we have to recognise that there are multiple facets to any given issue. You can't just look at law, or sociology or anthropology. But there seems to be this search for a meta-science that tries to combine all academic approaches of a given question, just like scientists are looking for a unified theory of forces. I think this just leads to confusion, where lawyers are doing bad sociology, sociologists are trying to act as legislators, etc. and the result is just more confusion.
Transitional Justice is a perfect example. It is one thing to adhere to a paradigm that says that you have to look at local conditions and frameworks to deal with post-conflict situations, and that justice is a multi-faceted concept that needs the input of several social sciences, not just lawyers, who had dominated the international justice approach up until recently. But as a discipline, Transitional Justice is still looking for its soul. Political scientists sometimes forget the normative dimensions. I heard one speaker defend amnesties on flimsy facts and adopting a utilitarian approach. Following his logic, that completely ignores the moral choice a society makes in controlling certain conducts, you could argue that killing one person in a national context could be useful and therefore make exceptions to the "thou shall not kill" rule...). Activists expect criminal courts to deal with issues with are fundamentally at odds with criminal trials (reconciliation for example). Universalist human rights people struggle with the adaptation to local settings and the difficulties of upholding strict human rights standards in transitional societies. What was initially a useful dialogue often seems to me to be counter-productive cacophony.
Another example is genocide, where activists are locked into a semantic/legal prison where they lose sight of the overarching goal of raising awareness for mass atrocities in general and where other social sciences can't seem to escape the legal definition of genocide (which is criminal and focuses on individual criminal responsibility) to elaborate their own definition that would better take into account the collective and socio-political aspects of the crime.
Any thoughts on that?

PS: I'm going to try and follow Michelle's advice and keep my posts somewhat shorter for a while. Let's see how that goes...

Thursday, February 4, 2010

Yesterday, the ICC Appeals Chamber issued its long-awaited Judgment on the Prosecutor's appeal against Pre-Trial Chamber I's refusal to allow the arrest warrant issued against President Bashir to cover Genocide charges. According to the Appelate judges, PTC I mis-applied the standard of proof at this stage of the proceedings by requiring that the genocidal intent be the only reasonable conclusion to be drawn from the evidence. The key argumentation by the Appeals Chamber is paragraph 33 where it states that:

"In the view of the Appeals Chamber, requiring that the existence of genocidal intent must be the only reasonable conclusion amounts to requiring the Prosecutor to disprove any other reasonable conclusions and to eliminate any reasonable doubt. If the only reasonable conclusion based on the evidence is the existence of genocidal intent, then it cannot be said that such a finding establishes merely "reasonable grounds to believe". Rather, it establishes genocidal intent "beyond reasonable doubt"."

Given this erroneous application of the standard of proof, the Chamber remands the matter to PTC I for a new decision, applying the right standard.

This case has created a lot of heated debate because it slots into a general debate about Genocide in Darfur. Scholars, practictioners, politicians have all contributed to the international cacophony surrounding this issue and it seems increasingly complicated to have any kind of clear discussion on the various components of the situation, given the array of political, moral and legal dimensions involved.

First things first, let's start with the decision itself. The Judgment does not express an opinion on the substance of the evidence, and does not re-include genocide in the charges at this point. It merely considers the legal question of the correct standard of proof. And I find the argumentation quite convincing. PTC I had indeed, in my opinion, imposed too high a threshold on the Prosecutor for the issuance of an arrest warrant, which is a considerably early stage of the proceedings. Taken from a purely legal perspective, there is therefore nothing shocking about the decision.
Expanding our analysis to the general ICC framework, I agree with Professor Schabas that the Appeals Chamber is decidedly slow in its decision-making. I would also like to add that I am sometimes a little puzzled by its methodology. It often seems to be doing half the work, although not so much in this case, even if it could have been a little clearer on the actual content of the test to be applied by the Pre-Trial Chamber to establish the "reasonable grounds to believe". One can recall its complete destruction of the gravity test proposed by the Pre-Trial Chamber in the early Lubanga/Ntaganda arrest warrant decisions, without giving any hint about what the appropriate test might be, with the consequence that the Article 17 gravity threshold has been completely stripped of any content, and has not been used by judges since.
However, I disagree that the issue should have been dropped at this stage, because the Prosecutor could have always added the charge later on in the proceedings in the event of Bashir's arrest, as suggested by Alex De Waal, or because judges would have discretion to add a conviction for Genocide at the conclusion of the trial, evidence was brought forward to prove it, as suggested by Professor Schabas. Independently from the merits of the case, the Appeals Chamber pronounced itself on the applicable burden of proof under Article 58(1) of the ICC Statute which will hold for all cases at the ICC, not just the Bashir case. Also, I'm not sure about the possibility for judges at trial to add new charges, or convict someone for crimes that were not accepted at the confirmation of charges phase.
On the procedural aspect of the case, it does seem that the ICC framework, initially built to speed things up, is actually revealing itself to be extremely cumbersome. By multiplying the phases (pre-investigative, pre-trial, confirmation of charge, trial...) and the institutions (pre-trial chamber, trial chamber...) the drafters have multiplied the procedural hurdles and the risks of the whole process being bogged down. This is made more acute with the inclusion of victim participation with an increase in litigation to establish the exact nature of their contribution to the proceedings, although it can be expected that the case-law will settle at some point and the wheel won't need to be reinvented every time a new case starts.

Finally, because a post of mine with no rant would not really be complete, I'd like to say a word about a word which for me is polluting discussions on Sudan: genocide. And this simple (ah ah) question: why is it so important to label as "genocide" what is happening in Darfur? There are several ways to approach the issue. From a legal perspective, there are various crimes under international criminal law and, whatever the proximity between them, more specifically in our case between genocide and crimes against humanity, it is only normal that the institutions dealing with these crimes call the actions by their right names. But the debate doesn't stop here, of course. There is a moral stigma attached to genocide, which, for various reasons, is not attached to crimes against humanity. Why is that so? Kevin John Heller argues that:

"First, it is difficult to seriously maintain that there is no difference between charging someone with crimes against humanity and genocide. There may be no difference in terms of the maximum possible sentence, but it clear that genocide is viewed as far more serious than even the crime against humanity of extermination. That’s why Raphael Lemkin coined the term “genocide.” That’s why we have a Genocide Convention. That’s why activists and scholars and governments put so much energy into ensuring that various situations — Saddam’s gassing of the Kurds, the Khmer Rouge’s “auto-genocide,” China’s treatment of Tibet, Australia’s treatment of aboriginals, etc. — are (or are not) labeled genocide instead of “mere” crimes against humanity."

This is beside the point. For one, KJH is mixing two aspects of the question, that the crimes are different and that there is a hierarchy between the crimes. Of course the crimes have different elements. The question is why there is a hierarchy? And this is the second problem I have with KJH's argumentation. He basically says that there is a hierarchy, because people think there is. That is not an answer. That a word enters the zeitgest for various socio-politico-moral reasons is not a objective explanation of why this is so. It's like child soldiers which was the talk of the day for a while, now being replaced by forced marriage. The fact that the focus of activists and world opinion is on one of them rather than the other does not mean that there is an objective reason to have a hierarchy between the two. The same is generally true about any topic taken over by world opinion, whether a particular illness (why so much more money given for Aids than malaria, despite the heavier yearly death toll for the second?) or event (two similar natural catastrophes will often get varying media attention for no objective reason). As academics, we have to see beyond "world opinion" to look for reasons to explain how things are. Not doing so, is either naive or unprofessional.

Which brings me to my last comments. I personnally have always been weary of the crime of genocide. For one, in response to the hierarchy, I'm not convinced. I don't see how it is worse to kill 1 million people indiscriminately (litterally denying them their humanity) or 1 million people because they are from a particular ethnic group. Who are we to judge on the loss of "diversity" that results from that? There is an unquestioned bias that is it worse to target a group, rather than individuals. I've never actually been convinced that my intent to kill is worse if I don't like the person for a specific reason rather than no reason at all. I'd actually think that from a philosophical point of view, crimes against humanity would be more an affront to the rational cartesian mind because there would be no reason for the killing (i'm speaking in theory of course), whereas a genocide, however abhorrent, has some rationality behind it.
In fact, I think that what KJH and others are doing is mixing up sociology, which is essentially descriptive, and law, which is goal-oriented towards normativity, being the process through which moral conviction becomes obligatory conduct for all. For me, genocide needs a specific existence as a methodological tool to describe a social conduct and social reality that are different than other ones. It's descriptive. Without the concept of genocide, you can't understand the socio-historical aspects of some of the most brutal mass killings in history.
But should it be law, especially criminal law? The shock of the Shoah led world leaders to recognise the specificity of genocide. Their outrage was of course legitimate, but it maybe led them to adopting solutions the flaws of which are still burdening us today and are unlikely to disappear given the difficulty in changing such morally grounded opinions. But, I would nonetheless argue that genocide has, on balance, in fact very little place as a crime carrying individual criminal responsibility. For me, motive, as opposed to intent, is irrelevant for the purposes of criminal liability. It's the same if I kill someone because he's black, wearing green trousers, or just because I was in a bad mood. at best, it can come into play as aggravating circumstances, but not an element of the crime. More importantly, we are trying to "fit" what is fundamentally a collective socio-political endeavour into the criminal liability of one man.
It is bound to make everybody unsatisfied. Lawyers might feel that it is contrary to the rights of the defense, anthropologists suggest that the actual definition doesn't take into account the social reality of genocide, activists try to "fit" situations in the definition of genocide to push for international intervention. But we all have to stop trying to fit everything into one accepted definition of the word. To anthropologists and sociologists, I would suggest that a criminal trial is never going to cover the social reality surrounding a genocide. It's not its role, in the same way that a national criminal judge is not there to assess the 40 years of neglect from the State that created the context for this particular young individual from a difficult neighborhood to push the old lady under a bus. To Human Rights activists I would suggest that they are unnecessarily making their work harder by trying to apply to collective situations of mass atrocities a definition that 1) is made for individuals and 2) the purpose of which is to be applied ex post facto in a court of law.
Of course, my solution to just scrap genocide as an international individual crime is totally unrealistic, but in the meantime I would suggest that the specifically criminal law aspect of genocide be kept to a minimum. And that sociologists, historians, activists, politicians stop locking themselves up in the legal debate and adopt the definition that fits their disciplines. Why is it so hard to accept that genocide can mean different things depending on the context? It is the case for so many words (causation, rationality, intent... all those words will have different meaning when you consider them in law or philosophy for example), why do we allow the debate on genocide to get floored by this illusionary search for a single cross-disciplinary definition?